The constitutions of the states of Kentucky, Missouri, Arkansas, Mississippi, and Alabama, all have provisions about slaves; yet none of them tell us who may be slaves. Some of them indeed provide for the admission into their state of such persons as are slaves under the laws, (which of course means only the constitutional laws,) of other states. But when we go to those other states, we find that their constitutions have made no designation of the persons who may be made slaves; and therefore we are as far from finding the actual persons of the slaves as we were before.
The principal provision, in the several state constitutions, recognizing slavery, is, in substance, this, that the legislature shall have no power to emancipate slaves without the consent of their owners, or without making compensation. But this provision is of no avail to legalize slavery, for slavery must be constitutionally established, before there can be any legal slaves to be emancipated; and it cannot be established without describing the persons who may be made slaves.
Kentucky was originally a part of Virginia, and derived her slaves from Virginia. As the constitution of Virginia was always a free one, it gave no authority for slavery in that part of the state which is now Kentucky. Of course Kentucky never had any legal slavery.
Slavery was positively prohibited in all the states included in the Louisiana purchase, by the third article of the treaty of cession—which is in these words:—
Art. 3. "The inhabitants" (that is, all the inhabitants,) "of the ceded territory shall be incorporated in the union of the United States, and admitted as soon as possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and, in the mean time, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."
The cession of Florida to the United States was made on the same terms. The words of the treaty, on this point, are as follows:—
"Art. 6. The inhabitants of the territories, which his Catholic majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the federal constitution, and admitted to the enjoyment of all the privileges, rights and immunities of the citizens of the United States."
To allow any of the "inhabitants," included in those treaties, to be held as slaves, or denied the rights of citizenship under the United States' constitution, is a plain breach of the treaties.
The constitutions of some of the slave states have provisions like this, viz., that all laws previously in force, shall remain in force until repealed, unless repugnant to this constitution. But I think there is no instance, in which the slave acts, then on their statute books, could be perpetuated by this provision—and for two reasons; 1st. These slave acts were previously unconstitutional, and therefore were not, legally speaking, "laws in force."[30] 2d. Every constitution, I think, that has this provision, has one or more other provisions that are "repugnant" to the slave acts.
[30] This principle would apply, as we have before seen, where the change was from the colonial to a state government. It would also apply to all cases where the change took place, under the constitution of the United States, from a territorial to a state government. It needs no argument to prove that all our territorial statutes, that have purported to authorize slavery, were unconstitutional.